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1.18.08 Issue #306 Forward This Newsletter To A Colleague

Michael Moore, Esq.
Director McKenzie
HR Solutions
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Separating Yourself from a Bad Employee
Part 3

We opened this series of articles by explaining how you can reduce the potential for a confrontational and even dangerous termination. The risk reduction starts with you having a solid employment relations policy that each employee reads, understands and signs before hire.

We also provided examples of how a termination poorly planned can result in the employer being hit for false imprisonment, assault, battery and a host of other potential claims. The second in the series provided strategies for controlling the situation and easing anxieties over terminations. We continue on here.

Record the termination meeting?
Employees sometimes ask to record the meeting, if they suspect it will be a termination. Many human resources managers refuse to allow recording the session. This is a real mistake. Think how it will play out in front of a judge/jury that the fired employee asked to record the session and was denied. If the employer tries to contest an employees’ claim as to what happened during the session it will cause the employer to lose credibility.

The best evidence is an audio [or, better yet, video] record. Consider deciding to document it yourself without waiting for the employee to ask.  A microcassette recorder works well and is inexpensive.

Main Steps

  1. Test the recorder to make sure it picks up voices clearly where the participants will be sitting.
  2. Ask the employee at the start if he/she objects to being recorded. If the answer is “yes,” simply turn on the recorder at that point, state your name, date, location, name of the employee, that the employee is present, and that there has been an objection to recording the meeting, and ask for the employee to confirm that, then turn it off.
  3. If no objection, go on the record, identify yourself, everyone present, date, place, get the employee to affirm that he/she knows the meeting is being recorded and agrees to it and be sure to state  the employee will receive a copy.
  4. At the conclusion, confirm that it is over, reaffirm you will supply a copy to the employee, state the time, then turn it off.

Conducting the meeting
Hand the employee the termination documents at the beginning. Be straightforward with your determination to terminate the employee. Offer the opportunity to read the termination letter at that time. Do not elaborate on the issues in the letter. This was covered previously. Answer any questions about the issues by referring back to your policies and the letter. The termination letter should say what you need to say.

Employee threats
Often you are hit by the employee with “I’ve already talked to an attorney, and the attorney says I can sue you!”

Do not take the bait in getting into a Q&A with the employee. If you’ve done your homework and documented what you need to, you have nothing to fear...except fear itself.  Never use as a reason for a termination that the employee has threatened litigation. Depending upon coverage of the anti-discrimination laws, you may be creating a cause of action for retaliation that would not exist absent the express basis for the termination.

Employee entreaties
Do not give in to the employee that breaks down and begs for another chance. Once you reverse the termination, you will never be able to terminate that employee. Don’t say you are sorry. Your words are critical – which is why we counsel to use so few. You may certainly say, “I’m sorry you feel this way.” Say no more than that.

Do not agree to give any reference, or to assist the employee in finding work. Any offer or agreement to do so commits you to action, and you want to end that relationship. Moreover it can be construed in unemployment issues as an admission the employee was not as bad as your letter says.

Finalizing the termination
If the employee has personal items that he/she wants to remove, facilitate that by having a box ready. Do not pack the employee’s things before the meeting – you may be subject to a claim of loss or theft. While recording, you or someone else, should accompany the employee to the work station as they pack and leave. Make sure the employee returns any property of the practice. You may need to change passwords and re-key office.

When you inform the staff of the termination – best the next working day – limit your statement to the fact that he /she has been terminated and make no statements as to why. Assure the staff and maintain that you are open to any questions that anyone may have and will answer in private.

Final actions
Make sure to send a copy of the recording to the employee by certified mail. Keep a copy of the cover letter and certified mail receipt in the confidential file for this employee.

If you receive communication from a lawyer, respond quickly and provide him/ her with everything you have in the file. Holding out only looks like concealment to a plaintiff’s lawyer – and he/ she can always get the documents by suit and subpoena. In a number of states, the employer is required by statute to give up the files. Be confident that you have done all you need to do, and can do.

Mike Moore is ranked among the best in employment law and named one of the top 10 lawyers in Ohio. As Director of McKenzie’s HRSolutions, Mike is the creator of The Employment Policy and Handbook geared to provide dentists who are unsophisticated in the legal arena with a step-by-step policy manual.For more information Click Here.

Interested in having Mike speak to your dental society or study club? Click Here

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